It is almost a cliché for analysts to resort to the statement attributed to Alexander Hamilton, in Federalist 78, that the Judiciary is the least dangerous power because it does not have the power of the sword or access to public coffers. It turns out that at the moment, in our country, the Judiciary is without a shadow of a doubt the most dangerous power in the Republic. The superior courts and, what is much more serious, the advance on the means of coercion — the sword. This situation is unprecedented from a comparative point of view.
There are scant records of the abuse of higher courts in many contexts, but typically the discretion of the judiciary is nothing other than the longa manus of the Executive. The agent of abuse of power in modern political systems is the occupant of the Executive, and in some rare situations, the legislative bodies. In democracies, abuse — when it occurred — was invariably due to the usurpation by the Executive of judicial and legislative functions.
The current criticism of a toga dictatorship —an image mistakenly attributed to Ruy Barbosa— is exceptional among us. This is not about usurpation by the Supreme Court of the functions of other Powers. This criticism of the countermajoritarian nature of judicial decisions is classic. The most influential formulation is that of Alexander Bickel in “The Least Dangerous Branch” (1962), which discusses the so-called “countermajoritarian difficulty” and the need for judicial self-restraint. This debate, however, refers to the risk of invalidation of majority decisions by elected agents — and not to the more serious hypothesis of internal dysfunctions that compromise the integrity of the Justice system itself.
In Madison’s formula, the power of the sword is understood as the power of the Executive, the abuse of which involves the use of the police and military under its direct jurisdiction. In democracies there are no judicial police. Just judicial police. Our problem is not just the open usurpation of the political functions of the other Powers —a well-known and theoretically mapped phenomenon—, but something institutionally critical: the emergence of allegations of use, by members of the courts themselves, of legal and procedural prerogatives to obstruct or hinder accountability for possible abuses committed by themselves. The recent one lies precisely there.
When this type of suspicion gains public plausibility, as at the current moment, the . As Bickel argued, courts live on moral authority and diffuse acceptance. If this reputational reserve deteriorates, the problem is not just legal — it is systemic. The erosion of trust in the final arbiter of the rules of the game affects the balance between the Powers and weakens the very idea of government limited by law.
The contemporary Brazilian paradox is that power historically conceived as the least dangerous can become a focus of systemic institutional risk. Preserving the authority of the Judiciary — which includes transparency, accountability and self-restraint — has become, more than ever, a condition for republican stability. E.
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